Citation Nr: 20003137 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 17-26 223 DATE: January 15, 2020 ORDER An earlier effective date of May 5, 1997, for the grant of service connection for left foot immersion foot is granted. REMANDED The issue of entitlement to service connection for right foot immersion foot is remanded. VETERAN’S CONTENTIONS The Veteran contends that an effective date earlier than February 26, 2013, is warranted for the award of service connection for left foot immersion foot based on an earlier date of claim. Specifically, the Veteran contends that the condition began in service and was present, even if not active, during an August 1997 VA examination performed in conjunction with a prior June 1997 claim for service connection. Therefore, he argues that it was clear and unmistakable error for the RO to deny his earlier claim for service connection in a November 1997 rating decision, and that the effective date for the subsequent grant should go back to May 1997, following his separation from service, as his original June 1997 claim was filed within a year of separation. FINDINGS OF FACT 1. The Veteran filed an initial claim of entitlement to service connection for immersion foot in June 1997, within one year of his May 1997 separation from service. 2. The Veteran’s June 1997 claim was denied by a November 1997 rating decision, which became final because the Veteran did not appeal or submit new and material evidence within one year of issuance of the rating decision. 3. In December 2003, additional relevant service treatment records were associated with the claims file that existed but were not associated with the claims file at the time of the November 1997 rating decision. CONCLUSION OF LAW The criteria for an effective date of May 5, 1997, for the grant of service connection for left immersion foot are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1984 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to an effective date earlier than February 26, 2013, for the grant of service connection for left immersion foot The Veteran seeks an effective date earlier than February 26, 2013, for the grant of service connection for left immersion foot. Generally, the effective date for an award based on an original claim for compensation benefits or a claim reopened after a final denial is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, regarding claims to reopen, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider, rather than reopen, the original claim. See 38 C.F.R. § 3.156(c); see also Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011); Vigil v. Peake, 22 Vet. App. 63, 65 (2008). In this case, the Veteran filed his initial claim of entitlement to service connection for immersion foot (subsequently granted as cold injury residuals) on June 23, 1997. His claim was denied in a November 1997 rating decision based on a finding of no current disability. The Veteran was notified of the denial in a December 1997 letter. The Veteran did not file a notice of disagreement and no additional relevant evidence was received within the one-year appeal period following notification of the denial. See 38 C.F.R. § 3.156(b). Typically, this would render that decision final and binding, and the VA could only reopen and review the claim upon receipt of new and material evidence. See 38 U.S.C. § § 5108, 7105(b); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. However, a review of the evidence reveals that relevant service treatment records dated in June 1997 were associated with the claims file in December 2003, subsequent to the November 1997 denial of his claim. Specifically, service treatment records were obtained in December 2003 that included a June 1997 service examination report noting “recurring emersion [sic] foot.” The Board observes that the report also noted it to be an update to an April 1997 separation examination. Accordingly, reconsideration of the June 1997 claim is warranted pursuant to 38 C.F.R. § 3.156(c). Resolving all doubt in favor of the Veteran, the Board finds that, in reconsidering the initial June 1997 claim, the proper effective date of the Veteran’s award of service connection for left immersion foot (or cold injury residuals), is the day following his separation from service or, May 5, 1997. 38 C.F.R. § 3.400(b)(2). In this regard, his June 1997 claim was received within one year of separation from service, and the evidence, including service treatment records and an August 1997 VA examination report, showed a chronic and episodic left foot condition manifested by white and painful blisters, diagnosed as immersion foot, that began during service and persisted after service. Indeed, a February 2014 VA examiner noted a history of recurrent cold injury and expressly opined that the Veteran’s foot condition stemmed from an original cold injury during service. Accordingly, the Board finds that an effective date of May 5, 1997, for the grant of service connection for left immersion foot (also characterized as cold injury residuals) is warranted. REASONS FOR REMAND The issue of entitlement to service connection for right immersion foot is remanded. The record shows that, following issuance of the April 2014 rating decision, the Veteran submitted a March 2015 notice of disagreement regarding the issue of entitlement to service connection for right immersion foot. To date, no SOC has been issued addressing that claim. As it has been over four years since the NOD was filed, the Board finds that a remand is warranted for the issuance of an SOC on that issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Issue an SOC regarding entitlement to service connection for right immersion foot. If the benefit sought is not granted, the Veteran and his representative should be advised of the appropriate time limit to perfect an appeal. The issue should only be returned to the Board if an appeal is perfected. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.